COMMONWEALTH vs. MICHAEL S. BARROWS.

435 Mass. 1011

January 8, 2002.

The defendant died following the oral argument of his appeal. His counsel has moved for the issuance of an opinion on the main point of the case that caused us to grant his application for direct appellate review: whether, on a charge of receiving or possessing a stolen motor vehicle, G. L. c. 266, § 28 (a), a defendant, on appropriate evidence, is entitled to a jury instruction on the offense of using the motor vehicle without authority, G. L. c. 90, § 24. When a criminal defendant dies pending his appeal, the general practice is to dismiss the charges. Commonwealth v. Latour, 397 Mass. 1007 (1986). The issue described above is one that can be resolved in a future appeal.

The judgments of conviction on indictments nos. 103265 and 103266 are vacated, the jury verdicts set aside, and the cases remanded to the Superior Court where those indictments are to be dismissed.

So ordered.

Claudia Leis Bolgen for the defendant.

Michael J. Markoff, Special Assistant District Attorney, for the Commonwealth.

TOM T. CONSTANTINE vs. COMMONWEALTH.

435 Mass. 1011

January 16, 2002.

In 1997, an order pursuant to G. L. c. 209A (209A order) was issued by a judge in the Plymouth Division of the District Court Department, prohibiting Tom T. Constantine from, among other things, coming within one hundred yards of his former girl friend. In 1999, Constantine was convicted after a jury

Page 1012

trial of violating the 209A order, among other charges, and placed on probation for three years. [Note 1] In 2000, he was again charged with violating the 209A order. This time, the record indicates that Constantine either admitted to sufficient facts or entered a guilty plea to the charge. Once again, he was placed on probation. On November 1, 2000, after Constantine waived a formal hearing, the probation ordered in the first 209A prosecution was revoked and he was committed to a house of correction for eighteen months.

Several months later, Constantine filed a petition in the county court pursuant to G. L. c. 211, § 3, alleging that the 209A order was improperly issued because he did not engage in any act of "abuse"; his actions forming the basis of the second 209A prosecution did not amount to a "violation" of the order; he was denied the effective assistance of counsel in the second prosecution; he was denied due process and equal protection in his probation surrender hearing; and he is currently "unlawfully restrained of his freedom" as a result of the alleged due process and equal protection violations. A single justice of this court denied the petition without a hearing. Constantine appeals. We affirm.

Here, Constantine has failed to carry this burden. Aside from a single sentence in his brief, asserting that this court "has jurisdiction" over this matter, he has not made any argument that a G. L. c. 211, § 3, petition is his only available means of remedying the alleged defects. Indeed, the record indicates that Constantine has or had several opportunities to address these claims. For example, he could have appealed from the issuance of the 209A order to the Appeals Court. See Zullo v. Goguen, 423 Mass. 679 , 681 (1996) ("review of orders pursuant to G. L. c. 209A should not be initiated by petition under G. L. c. 211, § 3, but rather by the filing of an appeal in the Appeals Court"). He could have moved for a new trial in the second prosecution. Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). See K.B. Smith, Criminal Practice and Procedure § 1251 (2d ed. 1983) ("A motion for a new trial is the appropriate device for attacking the validity of a guilty plea"). Similarly, he could have appealed to the Appeals Court from the revocation of his probation. Commonwealth v. Christian, 429 Mass. 1022 , 1023 (1999) ("proper avenue of relief for a defendant raising a challenge to the issuance of a probation revocation order" is by direct appeal to the Appeals Court).

Constantine apparently did not pursue any of these adequate, effective alternatives. Thus, the single justice's decision to deny his petition for

Page 1013

extraordinary relief was correct. McGuinness v. Commonwealth, supra at 498 (denial of petition warranted where petitioner "failed to demonstrate that the alleged errors cannot be remedied under the ordinary review process").

Judgment affirmed.

The case was submitted on briefs.

Tom T. Constantine, pro se.

FOOTNOTES

[Note 1] The record indicates that a notice of appeal from these convictions was filed on May 21, 1999. However, the record does not indicate whether the appeal was perfected or heard and it does not state the grounds for the appeal.